Argument | The Commercialization of Space Risks Launching a Militarized Space Race
International law must immediately and proactively address questions surrounding extraterrestrial commercial activity — or risk the unraveling of the international legal neutrality of space and the launch of a new militarized space race fueled by resurgent great power competition.
On April 6, 2020, U.S. former President Donald Trump announced an executive order encouraging the use and recovery of space resources, which includes hard rock minerals, helium, and regolith, among others. The order argued that outer space was not a "global commons," as is established in international law, but rather that space is considered as public and private property within the limits of applicable law.
The private commercialization of resources in outer space was long a goal of the Trump administration. However, President Biden’s space policies are much more speculative given the lack of information about his views on outer space. There is only one document from the Democratic Party, titled “Building a Stronger, Fairer Economy,” which hints at a Biden administration approach to space interests. According to the platform, the Democratic Party remains committed to continuing space exploration and supporting NASA’s programs.
Following Trump’s decision, SpaceX launched the Crew Dragon with NASA astronauts to the International Space Station (ISS) on May 30, 2020. Though in years past, NASA chose state-owned Russian rockets to send astronauts to outer space, the Crew Dragon is a rocket built, operated, and launched by a private American company. In the same month, NASA announced the Artemis Accords, which establish a new set of principles including the extraction and use of resources on the Moon, Mars, and asteroids. The commercial crew program appears to remain in operation, launching its first operational flight of the Crew Dragon by Space X on November 16th of this year.
While nonetheless a remarkable technical achievement, the Crew Dragon’s mission, and the policies that enabled it, will inevitably lead to a drawn-out geopolitical and legal conflict. The U.S.’ commercial activities could violate several international instruments and ignore U.N.’s resolutions, compromise a vital foundation of international law, weaken the U.S.’ standing and respectability around the world, and undermine the principle of maintaining international peace and security and promoting international cooperation and understanding, all while fueling a new space race between the world’s great powers. For all of these reasons, every effort should be made to foster an international response to the U.S. policy and to shore up international legal mechanisms to prevent the commercialization of space.
Fundamentals of the Final Frontier
It is a geopolitical imperative to determine what, if any, commercial activities and use of extraterrestrial resources are permitted within the confines of international law. Without clear-cut agreements on what activity is recognized by international law, the world will undoubtedly see states push the boundaries ever further in an attempt to gain the edge over geopolitical competitors — even more-so in an era of renewed great power competition. Yet to date, there exists no comprehensive treaty or legal reference to commercial activity in space.
However, this should come as no surprise. It has only been since the turn of the century that technology and markets have progressed to the point where commercial space exploration and exploitation has become possible. Only recently have experts and analysts of geopolitics and international law begun to seriously examine questions surrounding the legal framework that would govern extraterrestrial resource-mining and other commercial activities.
In the last decade, the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) dealt with commercial aspects in outer space. In one of their last reports, the Committee expressed that the era of the commercial utilization of outer space’s resources is intrinsically linked to the escalation of international competition over resources, which could threaten international peace and security.
By encouraging the international community to engage in outer space’s activities for the benefit of humankind as a whole, “some delegations” have expressed that states should avoid the promotion of laws and regulations related to the commercialization of outer space, arguing that it should be considered the heritage of all humanity. In that regard, states must then ensure that domestic law on the use of outer space complies with international space law, which means that states should respect the principles outlined in the Outer Space Treaty and ensure that national regulations do not contravene international provisions.
Even though the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (which entered into force in 1967), refers to the exploration and use of outer space, it does not address questions of a commercial nature, which compromises the ability of states and international actors to address new challenges to extraterrestrial activities. In several provisions, the treaty highlights that these activities may be carried out for peaceful purposes and the benefit of all people, reaffirming that outer space is not subject to national appropriation.
Were outer space not considered a global commons, that would imply that the resources and results of commercial exploration may fall within the jurisdiction of a country. It is thus incumbent upon Washington — and its commercial enterprises — to demonstrate how American commercial exploration of space benefits other countries and complies with international space law, or otherwise to adhere to the spirit of past treaties which emphasize the impartiality of outer space until such time as the law is clarified.
International Law is Adrift in Space
The potential benefits of commercial space exploration cannot be ignored. From an economic standpoint, the space industry would generate a significant economic boon for both states and private companies, due to the abundance and variety of resources — particularly scarce minerals that are difficult to extract on Earth. As one example of the vastness of resources held in outer space, one asteroid has the potential to contain more than the total supply of platinum extracted throughout the history of mankind. It may very well open the door to an advanced era of space navigation, building extraterrestrial infrastructure that facilitates the exploration and use of space’s resources, and extra-planetary human habitation.
Inevitably, there are significant drawbacks to the commercialization of space exploration. These can vary, for instance, from the commercial dominance of space’s natural resources only by those states with the technical and financial capital to support space missions, to geopolitical competition over extraterrestrial resources that threatens world peace and security, to the potential for the monopolization of extraterrestrial resources by states and private companies.
As was the case during the Cold War, the Soviet Union and the United States began a Space Race in which they struggled to achieve supremacy in space exploration and domination of science. Today, the number of space powers has increased thanks to continual advancements in flight, combustion, and fueling technologies. In the three decades since the end of the Cold War, technologically advanced countries like China, Japan, and France which previously had no space program have successfully navigated to the top tier of space-faring agencies and programs.
In 2018, the U.S. allocated $41 billion to space programs, followed by China at $5.8 billion, and Russia at $3.1 billion. Collectively, the three major space powers control almost 65% of the global industry, showing space powers are monopolizing space and reinforcing the inequality gap between states that do not have sufficient economic and technological capacity to invest.
With new actors on the game stage, conflicts of interest may arise. There is a risk that each actor adopts a kind of short-term Realist approach to space policy — one which is driven by self-interest in reaping the greatest benefits of extraterrestrial exploration and commercialization while controlling access to others. If unmitigated, states may choose to militarize outer space to gain a strategic edge over competitors and adversaries.
This process has already begun. Under the Trump administration, the Pentagon established the U.S. Space Force as a new branch of the Armed Forces to protect the country and allied interests in space. Already, Delta 4 — one of the U.S. Space Force’s missions — conducts strategic and theater missile warnings, manages weapon systems, and provides information to missile defense forces. The measure shows that for the U.S., outer space is not only a domain of scientific exploration but has the potential to become increasingly securitized.
With the impending expiration of the Strategic Arms Reduction Treaty (START) between the U.S. and Russia on February 5, 2021, a number of security dilemmas could arise. If the world’s two largest nuclear powers do not edge toward extending the treaty, Washington and Moscow risk returning to the era of unrestricted expansion of launch platforms and strategically-deployed nuclear warheads — potentially with the aid of military infrastructure in space.
Although President-elect Biden has expressed his interest in negotiating an extension of New START, how Moscow and Washington might proceed remains an open question. Bilateral progress towards a new arms-control regime would require establishing limits on the number and range of long- and mid-range missiles, establishing measures to limit the expansion of traditional missile deployment to space, and banning the deployment of nuclear weapons and weapons of mass destruction in outer space.
More than the risk of the securitization of space, state, and private actors could begin to claim exclusive legal rights over the resources they discover. Indeed, the U.S. Commercial Space Launch Competitiveness Act, which came into force in 2015, expressly recognizes the right of U.S. Citizens to possess, own, transport, use, and sell space resources. By this means, domestic law already acknowledges the legal claim to property by individuals, which is prohibited by international law. Under the Outer Space Treaty, states renounced any traditional form of acquisition of territories and agreed not to foray unilaterally into space to extend their national policies on Earth or to exercise any kind of sovereignty over celestial bodies or resources.
The absence of a modern international treaty that addresses these issues should be received with grave concern, as there is significant potential for risk to become reality. Existing UN treaties lack the technological context and foresight to address legal questions regarding the potential for commercial exploration and exploitation of outer space or its resources. During the sixties and seventies, when international instruments like the Outer Space treaty were conceived, the principal aim of states was to support and expand the scale of the state’s national capacity for operation in space and the development of legal instruments to guide state’s international cooperation in the peaceful exploration of outer space.
These instruments were never designed to respond to commercial questions over mining or tourism in space, private investment in space activities, or the emergence of non-state private enterprises operating in space. As a result, private enterprises operating in the vacuum of space also float in an unstable legal vacuum which threatens to implode in geopolitical competition.
Beyond Stars and States
In an increasingly commercial outer space in which there are no set limits to the exploitation of resources or claim to property, states and private companies will inevitably pursue the development of new extraterrestrial industries to suit their geoeconomic interests. If unchecked, the legal protection of outer space as a domain of exploration for the benefit of all humanity would functionally fail. To protect investments and profit from national space industries, states would likely resort to military force to protect and secure private assets.
Over time, space would ultimately become a fourth border domain over which states claim, exercise, and defend sovereignty — including through the use of force.
The challenge is thus to prevent the circumstances that could lead to space-borne conflict before it is made possible. Notwithstanding, commercial exploration and the use of natural resources need not lead to predation among actors involved in space. The potential rewards — both technological and environmental — that could come from investment in the harvesting of resources in space are immense. International law cannot afford to wait for the security dilemma posed by commercial activity in space to manifest before addressing it but must anticipate and proactively adopt measures to address future issues that govern extraterrestrial human activity.
The only remedy for the lack of legal governance over commercial activity in space is the creation of new international laws through a comprehensive international treaty on commercial operations in space. The new treaty must expressly regulate commercial activities by states and private companies, enshrine an international liability and compensation regime covering damages caused with workable sanction provisions, and reinforce norms that restrict any militarization of outer space. The international community should focus its efforts on establishing a legal regime, with mandatory provisions (rather than non-binding resolutions, observations, commentaries, and conclusions) which generate both international responsibility and provide enforceable sanctions in the event of violations.
The effort should be borne out by expanding the scope and strengthening the oversight powers of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), rather than creating a new organ with redundant bureaucracy. Beyond the tasks of encouraging space research programs, studying space activities, and addressing legal questions, COPUOS should be granted the necessary powers to perform control and oversight monitoring functions.
Experience has taught the international community that cooperative arrangements between states and international organizations can prevent competition for resources from escalating to kinetic conflict. Through cooperation, there is a chance to preserve extraterrestrial resources for future generations, secure an equitable allocation of resources and benefits with a mind to each country’s specific needs, and prevent the expansion of geopolitical conflict to the domain of space. Space powers must recognize the value in partnering with other states to advance the development of space programs more efficiently.
It should be clear now that all nations could reap the benefits of collective action, exploration, and commercialization of resources from beyond Earth’s atmosphere while preventing a drawn-out international conflict to the final frontier. The will of states not to jeopardize the fundamental basis of international law must be reflected in coordination and surveillance efforts to ensure that the advantages derived from space exploration allow humanity to continue evolving.
All views expressed in this article are solely those of the author, and do not represent the views of The International Scholar or any other organization.
Photo Credits:
SpaceX Hawthorne, by Kelly Michals, Flickr,
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